French v. State Industrial Accident Commission
| Decision Date | 25 May 1937 |
| Parties | FRENCH v. STATE INDUSTRIAL ACCIDENT COMMISSION. |
| Court | Oregon Supreme Court |
Department 1.
Appeal from Circuit Court, Clatsop County; H. K. Zimmerman, Judge.
Proceedings under the Workmen's Compensation Act by Frances E French, claimant, for the death of her alleged husband George French, deceased. From a judgment affirming an order of the State Industrial Accident Commission denying compensation, claimant appeals.
Affirmed.
This is an appeal by Frances E. French (plaintiff) who claims to be the widow of George French, deceased, from a judgment of the circuit court which affirmed an order of the defendant, State Industrial Accident Commission, denying to the plaintiff compensation for the death of the deceased. The judgment is based upon the verdict of a jury which answered "No" to the following question propounded to them "Did the plaintiff and George French contract a common law marriage in the State of Idaho on or about the month of March, 1925?"
William P. Lord, of Portland (T. Walter Gillard, of Portland, on the brief), for appellant.
Victor R. Griggs, Asst. Atty. Gen. (I. H. Van Winkle, Atty. Gen., on the brief), for respondent.
Two issues only are argued in the plaintiff's (appellant's) brief: (a) The trial judge erred in failing to instruct the jury that a man and a woman deporting themselves as husband and wife are presumed to have been legally married; and (b) the plaintiff's motion for judgment non obstante veredicto should have been sustained. The plaintiff claims that she and one George French contracted a common-law marriage in Idaho. The defendants do not deny that common-law marriages may be lawfully contracted in that state, but both parties agree that such marriages cannot be legally contracted in either California or Oregon, the other two states in which the plaintiff and French resided at the times material to this controversy.
December 17, 1935, the plaintiff filed with the defendant commission a claim for compensation in which, besides averring the death of French on November 6, 1935, under circumstances for which compensation was payable, stated that he and she was married in San Francisco, Cal., April 12, 1925. Compensation was denied. January 25, 1936, through an attorney, she filed with the commission a petition for a rehearing in which she stated: "Claimant in the year 1925 was an unmarried woman and in all respects competent to marry, and one George French was likewise an unmarried man and competent to marry; thereupon the said parties entered into a marriage and ever since that time lived together until the death of said George French. ***" This petition was accompanied with a letter from the attorney in which he stated: "This claim rests upon a common law marriage contracted in the State of California in the year 1925."
Upon the rehearing the plaintiff swore that she first met French in San Francisco in 1921, that later the two began living together, and that still later they moved to the state of Idaho. Her attorney then asked her: "You say it was in 1929 that you and Mr. French got into this marriage in Idaho?" She answered, "Yes, sir." The attorney then asked permission to amend the petition for a rehearing by substituting 1929 for 1925 as the date of the alleged marriage. The plaintiff swore that French was a Canadian citizen who had served with the Canadian forces for four years during the course of the World War. She produced a letter dated February 14, 1930, addressed to him from the Department of Pensions and National Health of Canada, from which we quote: "It is noted from Life Certificate completed by you on December 14th, 1929, that you were married on July 8th, 1926." No reply was made to this letter and the plaintiff, as a witness, offered no explanation of this date.
Concerning her conception of the relationship between herself and French as they proceeded to Idaho, she testified:
The following is the explanation she gave before the commission for their omission to have a ceremonial marriage
Although she testified that she and French lived together, that he treated her as his wife, and that all of their acquaintances deemed the two husband and wife, she did not mention any agreement that contemplated they should assume that relationship. The commission held that the plaintiff was not a dependent of the deceased, and awarded no compensation.
Next, the plaintiff filed the complaint which brought this matter before the circuit court. In it, after averring that French died November 6, 1935, she alleged: "For many years past plaintiff was a single woman over the age of 18 years and in all respects competent to marry, and said George French was likewise a single man, over the age of 21 years and in all respects competent to marry, and thereafter the said parties, in the State of Idaho, did enter into an agreement by the terms whereof plaintiff and said George French did agree to become husband and wife, and did become husband and wife, and entered upon the marriage relation, and ever since said time, which was more than ten years prior to the death of said George French, plaintiff and said George French lived and cohabited together as husband and wife."
The defendants filed an answer in which they averred that the plaintiff's application to the commission alleged that her marriage to French occurred April 12, 1925, in San Francisco, Cal. The reply denied this averment.
In the circuit court the plaintiff, as a witness, produced two applications for pensions which French had filed with the Canadian Pension Commission. Both bore the signatures not only of French, but also of the plaintiff. From the one dated December 14, 1929, we quote: "I was married on July 8, 1926." At that time the two were living in Oregon. The other is dated November 14, 1930, and from it we quote: "I was married on _____ yes." It gives no date.
As a witness in the circuit court, the plaintiff swore that she first met French in 1921 in San Francisco when he became a boarder in a place she was operating. Both were then 47 or 49 years of age. She testified that three months after they met "we got an apartment and went to live as man and wife." In 1925 they went to Idaho to visit the plaintiff's brother, and there took place the incidents which effected the common-law marriage-if such a marriage ever occurred. Her brother's wife, so the plaintiff declared, told her that in Idaho common-law marriages could be lawfully contracted.
If vows to become husband and wife were ever exchanged between the two, the evidence concerning them must be found in the following, quoted from the plaintiff's testimony. It is not all of her testimony concerning what occurred in Idaho, but is, we believe, the principal parts:
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